Wednesday, November 7, 2012

Some
states require voters at a polling place to produce photographic identification
(photo ID) before casting a ballot. Such requirements have emerged as a
controversial issue in the 2012 presidential election, and they are the
focus of this report.

Since 2008, almost half the states have enacted laws, many in 2012, relating to
voter identification, with several containing photo ID requirements. In
contrast, while several bills with voter identification provisions have
been introduced in the 112th Congress, none have received committee or
floor consideration.

About 30 states require voters to provide some form of identification when
voting in person, although few require such documentation for absentee
voters. Seven of these states require a photo ID for polling-place voting
but permit alternatives such as signing an affidavit, for voters without
an ID. With respect to what type of photo ID is acceptable and what happens if
a voter does not have it, no two states are the same.

Four states—Georgia, Indiana, Kansas, and Tennessee—permit only voters who
present a photo ID to cast a ballot, with few exceptions. Pennsylvania,
South Carolina, Texas, and Wisconsin recently enacted similarly strict
photo ID requirements that are not in effect at present because of court
or U.S. Department of Justice (DOJ) actions.

In 2008, the U.S. Supreme Court upheld the Indiana voter photo ID law under the
U.S. Constitution on equal protection grounds. However in more recent
cases, the question being considered is whether such laws violate relevant
state constitutions. For example, a Pennsylvania court recently
issued a preliminary injunction to a portion of a new state law, predicting
that implementation for the November 6, 2012, election would result in voter
disenfranchisement. As a result, election officials in Pennsylvania will
be permitted to ask voters for the requisite ID, but will be required to
accept and count the ballots of qualified voters who do not present ID, and such
voters will not be required to cast provisional ballots.

Whether voter photo ID laws comport with the Voting Rights Act (VRA) has also
recently been considered by the courts and DOJ. Section 5 of the VRA
requires certain states and jurisdictions to obtain preclearance from
either DOJ or the U.S. District Court for the District of Columbia before
implementing a change to any voting practice or procedure. For example, in
March 2012, DOJ denied preclearance approval under Section 5 to laws in
Texas and South Carolina that require voters to show photo ID prior to
casting a ballot. Subsequently, federal courts also denied preclearance to
both laws, so they will not be in effect for the November 6, 2012, election.
The South Carolina law, however, was granted preclearance to take effect
in any election beginning in 2013. Photo ID requirements enacted in
Alabama and Mississippi are slated for implementation after 2012, and are
also subject to preclearance.

Supporters of photo ID requirements emphasize the need to prevent voter fraud,
while opponents emphasize the need to avoid disenfranchising legitimate
voters who do not have ready access to a photo ID. Polling data suggest
that most voters and most local election officials support a photo ID
requirement but that many are also concerned about the risk of
disenfranchisement. The policy controversy centers largely on whether the
risk of disenfranchisement or the risk of voter fraud is the greater
threat to the integrity of the electoral process. This policy debate is being
conducted in the absence of a broad consensus about the evidence
pertaining to those risks.

Election administration is complex, and changes in photo ID requirements may
affect other aspects as well, among them the use of provisional ballots,
the potential for long lines, and the possibility that poll workers could
misapply the new rules. It may be advantageous to have as much time as
possible to implement changes to voting procedures, so that election officials,
poll workers, and voters have time to adjust. The new photo ID procedures
in effect for 2012 may provide a test of that view.

Date of Report: November 2, 2012
Number of Pages: 23Order Number: R42806Price: $29.95

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